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Acevedo v. Commissioner of Social Security

September 27, 2010


The opinion of the court was delivered by: Peter G. Sheridan, U.S.D.J.



Plaintiff, Nelida Acevedo, appeals the denial of her application for a period of disability and disability insurance benefits by the Commissioner of Social Security (Commissioner). Plaintiff alleges disability beginning on June 26, 2006, due to arthritis, osteoporosis (back pain), cataracts, asthma, and problems with her kidneys. Plaintiff had an evidentiary hearing before the Hon. Donna A. Krappa, ALJ on September 28, 2008. At the hearing, Plaintiff and Pat Green, a vocational expert, testified. At the hearing, the ALJ agreed with the opinion of the vocational expert that Plaintiff was unable to return to her prior employment (teacher's assistant), but may continue to perform light work with some limitations, and therefore was not disabled. The only issue to be determined by the Court is whether substantial evidence supports the Commissioner's decision that Plaintiff was not disabled between Plaintiff's alleged onset date of June 26, 2006, and the date of the Administrative Law Judge's (ALJ) decision on November 20, 2008.



Plaintiff is a fifty year old woman who was born in Puerto Rico and moved to the United States when she was in her twenties (1970s). She is married and has two daughters. She obtained a college degree in Puerto Rico and can communicate in English. She has previous work experience as a full-time teacher's aide at the Academy Street School in Dover, New Jersey where she worked with a blind student. (R. 26, 54). She has a driver's license and regularly drives. (R. 28).

At the hearing, Plaintiff testified that she has had asthma for about thirty-five years and that she is unable to work due to asthma, which causes her to have difficulty breathing and wheezing. She uses nebulizer treatments on an "as needed" basis, mostly when the weather is humid or when she is exposed to chemicals. She also uses an Advair inhaler for her asthma symptoms. Chemicals, cold temperatures, and pollen sometimes cause her to have asthma attacks. (R. 48). Perfume and other scents irritate her lungs. (R. 49). Presently she can only walk a block before stopping to catch her breath. She has difficulty ascending stairs in her house, and she testified that she can only stand for ten to fifteen minutes at a time. (R. 37). Her weight is approximately 150 pounds.

Since 2002, Thomas A. Giangrasso, M.D. of Allergy, Asthma and Arthritis Associates, P.A. treated Plaintiff for symptoms of asthma. (R. 145-312). Over the course of the treatment, Plaintiff's pulmonary testing has shown a mild lung obstruction. (R. 240, 294, 295, 390). She was assessed with low vital lung capacity on three occasions prior to her alleged onset date, but has not been similarly assessed since June 26, 2006. (R. 241, 293, 294). On September 12, 2006, Plaintiff had a normal spirometry. (R. 292). According to the record, Plaintiff's last trip to the emergency room for asthmatic symptoms was in July 2005. She was given three nebulizer treatments and released. Dr. Giangrasso noted that Plaintiff was functioning much better three days later. (R. 159, 207.)

Plaintiff also testified that she has had arthritis in her hands for about fifteen years causing pain and trembling in her hands and difficulty grasping objects without dropping them. (R. 33). She takes Tylenol for the pain in her hands.

Plaintiff also has osteoporosis or thinning bones which has caused a fractured foot (see x-ray and treatment of Robert C. Petrucelli, M.D.). (R. 330-34, 335-42). A bone density report of July 2, 2007 found that Plaintiff was "osteopenic" according to World Health Organization criteria. On May 13, 2008, x-rays of Plaintiff's right hand showed joint space narrowing at the distal interphalangeal joints two through five with deformities at the fourth and fifth joints. (R. 385). She also had joint space narrowing of the proximal interphalangeal joints three through five with a small ossific density noted adjacent to the second distal interphalangeal joint ulnar aspect. Plaintiff's left hand showed narrowing of the distal interphalangeal joints with a deformity at the third and advanced erosive change at the fifth. She also had narrowing of the proximal interphalangeal joints three through five with soft tissue calcification noted ulnar to the base of the fifth metacarpal. There are no opinions from Dr. Petrucelli that Plaintiff's osteoporosis cause any limitation on Plaintiff's ability to manipulate. (R. 385).

At the hearing, Plaintiff testified that her doctor indicated that the prednisone which had been prescribed to treat asthma for twenty or more years caused her osteoporosis and her cataracts. She is currently taking Fosamax for her symptoms of osteoporosis, and her cataract surgery was scheduled for sometime in 2009.

Socially, Plaintiff attends church on Saturday and travels annually to Puerto Rico with her family for a month. She described her typical day as waking and driving her daughter to school. (R. 43). She fixes the bed, straightens and hangs clothes, and cooks. Her daughter and her husband help her with housework. Plaintiff has reading problems due to cataracts, but she watches television in the evenings. (R. 31). She has no difficulty sleeping. Plaintiff stopped working as a teacher's aide because of difficulty with concentration (forgetfulness), problems with writing due to her hand shaking, and because she needs to avoid children when they are sick due to her asthma. Because of her forgetfulness, she often takes notes to remember things.

On November 15, 2006, a Physical Residual Functional Capacity Assessment by Burton Gillette, M.D., found that Plaintiff was limited to occasionally lifting and/or carrying twenty pounds; frequently lifting and/or carrying ten pounds; standing and/or walking (with normal breaks) for a total of about six hours in a eight hour work day; sitting (with normal breaks) for about six hours in a eight hour work day; unlimited pushing and/or pulling (including operation of hand and/or foot controls); and no postural, manipulative, visual, or communicative limitations were found. Plaintiff was found to have environmental limitations due to her asthma and must avoid extreme cold, noise, fumes, odors, dusts, gases, and poor ventilation.

On April 23, 2007, an additional Physical Residual Functional Capacity Assessment was done by Henry Schechter, M.D. who found the same limitations. Dr. Schechter additionally found Plaintiff's vision to be 20/25 and 20/20. He also stated that Plaintiff had side effects from her asthma medication, including wheezing and shakiness, with a forced vital capacity (FVC) of 85% of the predicted value, and an FEV1 of 64% of the predicted value, but that Plaintiff had never been intubated and had no recent visits to the emergency room. He further mentioned that a dual energy X-ray absorptiometry (DEXA) bond density scan showed osteoporosis in Plaintiff's lumbar spine and osteopenia in her hips bilaterally. (R. 324, 334). Dr. Schechter noted that there was no mention of back pain, arthritis in the hands, difficulty walking due to leg pain, or sinus problems. Due to same, Dr. Schechter concluded that Plaintiff had no postural, manipulative, or visual limitations. (R. 324-25). According to his assessment, Plaintiff should avoid even moderate exposure to extreme cold and fumes, odors, dusts, gases, and poor ventilation. (R. 326). Dr. Schechter found that the symptoms of wheezing and shortness of breath, especially with exertion, were attributable to acute and chronic asthma, and that the severity is consistent with the evidence and her ability to function. (R. 327). He also noted that Plaintiff's ...

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